I've been reading about the idea that something similar to intellectual property could be recreated through contracts. In other words, by putting a copyright notice on something, you're saying that the purchaser can do what they want with the item, except copy it. This is, I believe, accepted by all libertarians; the dispute arises when third parties are taken into account. According to Rothbard, the copyright would still be enforceable:
Rothbard:A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.
Stephan Kinsella disputes this by arguing that the borders of property must be objective and intersubjectively ascertainable to function:
Kinsella:But surely something is amiss here. Suppose that A writes a novel and sells a first copy, BOOK1, without restriction (i.e., without a reservation of rights) to B1; and a second copy, BOOK2, to B2—but “reserving” the book’s inherent “right to copy.” The two books, BOOK1 and BOOK2, appear to third parties to be otherwise identical. Yet they are not: one is incomplete; the other somehow contains more mystical “rights-essence” within its covers. Suppose B1 and B2 leave these books on a park bench, where they are discovered by third party T. According to Rothbard, BOOK2 is “missing” the “right to copy,” much like an electronic toy that is sold “batteries not included.” It is as if there is an invisible, mystical tendril of “reproduction-ownership” stretching from BOOK2 back to its true owner A, wherever he may be. Thus, even if T finds and homesteads the abandoned BOOK2, this book simply does not contain “within itself” the right to permit the owner to copy it. It is being continually siphoned away by a rights wormhole which connects the item to owner A. Thus, if T homesteads the book, he still homesteads no more than he acquires. T homesteads only a book without a right to copy “built in,” and, thus, does not have the right to copy BOOK2. The same is true for subsequent third parties who come to possess the book. Is such a view really tenable? Can we conceive of property rights working this way? Even if we can, would it really achieve the desired result here—preventing third parties from using the protected ideas? It is difficult to maintain that rights can be reserved in this manner. One function of property rights, after all, is to prevent conflict and to put third parties on notice as to the property’s boundaries. The borders of property must necessarily be objective and intersubjectively ascertainable; they must be visible. Only if borders are visible can they be respected and property rights serve their function of permitting conflict-avoidance. Only if these borders are both visible and objectively just (justifiable in discourse) can they be expected to be adopted and followed. But think of the two books, BOOK1 and BOOK2. How could one tell the difference between them? How could one see the rights-tendril connected to the latter but not to the former? How can third parties be expected to respect an amorphous, invisible, mystical, spooky, possibly unknown and unknowable property border? (emphasis added)
Is such a view really tenable? Can we conceive of property rights working this way? Even if we can, would it really achieve the desired result here—preventing third parties from using the protected ideas? It is difficult to maintain that rights can be reserved in this manner. One function of property rights, after all, is to prevent conflict and to put third parties on notice as to the property’s boundaries. The borders of property must necessarily be objective and intersubjectively ascertainable; they must be visible. Only if borders are visible can they be respected and property rights serve their function of permitting conflict-avoidance. Only if these borders are both visible and objectively just (justifiable in discourse) can they be expected to be adopted and followed. But think of the two books, BOOK1 and BOOK2. How could one tell the difference between them? How could one see the rights-tendril connected to the latter but not to the former? How can third parties be expected to respect an amorphous, invisible, mystical, spooky, possibly unknown and unknowable property border? (emphasis added)
I have a problem with this critique, though: isn't the word "copyright" being stamped on the inside cover an objective and intersubjectively ascertainable property border? Unless I am missing Kinsella's point, it would seem that the third party could tell the difference between the two books simply by seeing the copyright notice.
You began by saying you were interested in recreating IP via contract. But just stamping a copyright notice inside a book cover does not create a contract with anyone. Copyright notices are threats to use the government. They are put there precisely because the publisher does not have any contract rights against would be copiers.
DBratton:You began by saying you were interested in recreating IP via contract. But just stamping a copyright notice inside a book cover does not create a contract with anyone.
What if it expressly said: "by purchasing this book, you agree not to copy it". That would seem to be a contract with the purchaser. The question then turns to third parties, where Kinsella seems to accept that they are bound as long they know the borders of the property; a copyright notice would seem to fulfill this criteria.
DBratton:Copyright notices are threats to use the government.
In our current society, yes, but the same is true of enforcement of most contracts; in a free society, copyright enforcement (if it's justifiable, hence this topic), like any other kind of enforcement, would be private
DBratton: why not? Contracts don't have to be in writing or in words. I can certainly imagine a court's ruling that it has become so common custom, that everybody is supposed to know that the "c" means that "by buying this book you agree not to create copies blablabla" much like INCOTERMS, which are respected by virtually every state's courts.
Kinsella's argument is based on the maxim that no one can transfer more rights than he has himself. But abandoning and occupying book, is not a transfer of rights. It is originary acquisition, not derivative and therefore this maxim cannot be applied. Or in other words, if you originary acquire a thing that contains an idea, it is for all practical purposes the same as inventing the idea yourself. That is as long as you want to stay in the "contractual" framework and refuse to recognise idea as an object of property per se.
britainland:where Kinsella seems to accept that they are bound as long they know the borders of the property;
No he doesn't say quite that. He only says that borders are a requirement. He doesn't say borders are all you need. A contract is a voluntary agreement between two parties. Just seeing a "C" with a circle around it printed by someone else in no way binds me to refrain from using my own property - my paper and ink - in any way I see fit.
Furthermore, where is this border supposedly created by the copyright symbol anyway? It doesn't keep the ideas contained in the book out of my head. Nor does it keep me from making copies of the ideas by telling them to others.
Cortex:I can certainly imagine a court's ruling that it has become so common custom, that everybody is supposed to know that the "c" means that "by buying this book you agree not to create copies blablabla"
The discussion is about third parties. What if I didn't buy the book? What if I found it discarded in a trash can (one of Krugman's books maybe)?
DBratton: Cortex:I can certainly imagine a court's ruling that it has become so common custom, that everybody is supposed to know that the "c" means that "by buying this book you agree not to create copies blablabla" The discussion is about third parties. What if I didn't buy the book? What if I found it discarded in a trash can (one of Krugman's books)?
The discussion is about third parties. What if I didn't buy the book? What if I found it discarded in a trash can (one of Krugman's books)?
Third party problem is only a matter of choosing the right kind of contract. There are more contracts than just buying/selling. The "c" could represent a contract between the author and any reader, regardless of who owns the paper on which the idea is printed. "By reading this book you agree to blablabla"
Edit: that would actually solve the whole orginary/derivative acquisition problem.
Cortex:he "c" could represent a contract between the author and any reader, regardless of who owns the paper on which the idea is printed. "By reading this book you agree to blablabla"
If I find a book in the trash then it is completely mine. So who is the other party in the contract?
DBratton: Cortex:he "c" could represent a contract between the author and any reader, regardless of who owns the paper on which the idea is printed. "By reading this book you agree to blablabla" If I find a book in the trash then it is completely mine. So who is the other party in the contract?
The author....
Again, contracts are not related to property only. They can regulate behaviour too. If you go to a massage, no property is involved in the contract between you and the masseur.
Object of a contract can be fourfold: dare (to give), facere (to do), omittere (to omit/refrain from), pati (to suffer some action). I think you are making the mistake of thinking of contracts as "dare" only, with the copyright clause being a condition of the transition of property, therefore if there is no transition of property (such as when you occupy a thing), there can be no condition limiting your behaviour. But the "c" clause as I suggested it is not "dare", but "omittere" and no transition of property is required to be bound to omit something. In this particular case to omit/refrain from making copies or other things.
Cortex:The author....
If the book is in the trash any rights the author had have been abandoned.
Cortex:Again, contracts are not related to property only. They can regulate behaviour too.
Suppose I tear out the copyright page and give the book to a friend. How would he be bound not to make copies? You can't argue that he is receiving stolen property since you just said property is not involved in the contract. At most you could sue me, but that wouldn't stop him from making copies.
1) What makes you think that it was the author who trew it away? It could have been somebody who bought it, or bought it from somebody else who bought or stole it from.....you know what I mean.
2) His will to get rid of the corporeal thing says nothing about his will about making copies. Two different things. Especially if the author threw away only this one particular book.
3) Yes, the friend wouldn't be bound. But you would be liablle to compensate damages (almost nothing) and loss of profit (theoretically a lot) of such action. Suppose the friend likes the book, he makes a thousand copies and sells them for $20 without any copyright claimms. Then every person who bought it can again make x number copies and so on. And you would be liable to compensate for it.
But this can be avoided by printing a little c on every page of the book. If you cut out every c and there was a custom of printing those c on every page on some specific position I think the court would rule that it was in the scope of your friend's reasonableness to suppose that something is going on and he would be liable himself. Or at least I would rule like this, if I was the judge.
by reader you mean looker-atter?
like if i draw a C on my shirt, and you see me on the street you have agreed to pay me $5 since you looked at me and it was a C on my shirt.
sweeeeeeeeeeeeeeeeeet.
Where there is no property there is no justice; a proposition as certain as any demonstration in Euclid
Fools! not to see that what they madly desire would be a calamity to them as no hands but their own could bring
Cortex:What makes you think that it was the author who trew it away?
It doesn't matter who threw it away. It's now unowned and homesteadable.
Cortex:Yes, the friend wouldn't be bound.
Well that settles the question doesn't it?
Cortex:But this can be avoided by printing a little c on every page of the book.
I can just make an unauthorized copy without the C and pass that along. BTW, the compensation idea doesn't work either since I could be insolvent and unable to pay.
Cortex: If you cut out every c and there was a custom of printing those c on every page on some specific position I think the court would rule that it was in the scope of your friend's reasonableness to suppose that something is going on and he would be liable himself. Or at least I would rule like this, if I was the judge
If you cut out every c and there was a custom of printing those c on every page on some specific position I think the court would rule that it was in the scope of your friend's reasonableness to suppose that something is going on and he would be liable himself. Or at least I would rule like this, if I was the judge
And are you still calling that a form of contract? That is a set of government imposed behavioral restrictions. If we are assuming that an IP free world would also be a libertarian world, then there would be no positive rights. So even if there were this strange custom to assume a "C" on every page, whether there actually is one or not, an individual wouldn't be bound by it.
Even if we accept that the book-finder is obligated to refrain from copying it, what about the person who receives the new copy? They have not made any contract with the publisher, nor have they acquired any property that ever belonged to the publisher in the first place, so it's impossible for there to be contractual restrictions on it.
Do you mean, if somebody who is obliged not to make a copy makes one, then sells it and then the owner of the "illegal"copy makes another copies?
nirgrahamUK: Cortex:he "c" could represent a contract between the author and any reader, regardless of who owns the paper on which the idea is printed. "By reading this book you agree to blablabla" by reader you mean looker-atter? like if i draw a C on my shirt, and you see me on the street you have agreed to pay me $5 since you looked at me and it was a C on my shirt. sweeeeeeeeeeeeeeeeeet.
No, I didn't say anything like that. I said that the "c" could (if a widespread custom has been estabilished) represent the author's reservation of rights to reproduce etc. Neither current laws, neither this custom would require anyone to pay for looking at/reading. You've got to pay for reading to the bookseller, i.e. to the seller of the corporeal thing. If you find a book in a bin, you can occupy it and read for free, but you cannot make copies. If you put "c" on your shirt, it doesn't oblige anyone to pay for looking at you. It requires them to ask you for your approval to use the shirt's design for commercial practices.
DBratton: It doesn't matter who threw it away. It's now unowned and homesteadable.
DBratton:Well that settles the question doesn't it?I can just make an unauthorized copy without the C and pass that along.
DBratton:BTW, the compensation idea doesn't work either since I could be insolvent and unable to pay.
DBratton: And are you still calling that a form of contract? That is a set of government imposed behavioral restrictions. If we are assuming that an IP free world would also be a libertarian world, then there would be no positive rights. So even if there were this strange custom to assume a "C" on every page, whether there actually is one or not, an individual wouldn't be bound by it.
Cortex:Do you mean, if somebody who is obliged not to make a copy makes one, then sells it and then the owner of the "illegal"copy makes another copies?
Yes.
Cortex:If I am a hobo and set your car on fire, does it mean that I don't owe anything to you or even that I never stole the car? No, it simply means that I don't have the money to repay it at the moment.
Fine. But how does that create an contract based IP regime? You've established that you have recourse against me. But now you still have a third party with a copyright notice free copy of the book. The only recourse you are proposing against him depends on the existence of a law, not a contract.
Cortex:Yes, I do, or rather I don't call it contract, but obligation. Probably quasi ex contractu or quasi ex delicto, maybe ex delicto culposi, not really sure from the top of my head.
I just want to be clear here. The initial proposition was that something like IP could be created using just contract agreements. Are you still maintaining that?
Cortex:Positive rights have nothing to do with it.
If you claim the right to enforce some kind of universal implied contract where everyone who sees a "C" is obliged to refrain from copying and everyone who doesn't see a "C" is obliged to assume there is one anyway, then you are asserting a positive right.
Cortex:And it is no government imposed restricition.
Who is going to enforce the custom? If I'm from somewhere else and I don't share your customs can I make copies? Maybe there is no "C" in my alphabet.
Cortex:Really, the notion of a contract as "it's not on the paper and it's not selling/buying a corporeal thing, then it's not a contract" is a little....premature.
That isn't my argument. I'm trying to work with your propositions that IP can be recreated using only contracts, and that the necessary contracts are agreements to refrain from taking certain actions and are not contracts for any sort of property transfer. I still don't see how you can bind third parties who haven't made an agreement with you. Your solution is to establish a universal law, which you try to smuggle in by calling it a custom and by saying everybody does it so it's an implied contract.
Ok, here's the deal:
1) I am not saying that it is posssible to imitate every single aspect of the current IP law through contracts. In fact I haven't given it serious thought yet. As a person who is trained and licensed to twist rules ;) I'm just throwing in my two cents of standard legal thought. I am just thinking out loud, I am not revealing finished bulletproof solutions.
2) Sure you can say: "who is going to enforce the custom/whatever?", but you can dismiss anything by this. In an Ancap society I can set up an agency that will not consider you capable of owning things and try to seize them. But let's stay in the optimist framework that the agencies or at least majority of them will share some principles. Long story short they will decide cases ex aequo et bono. Those principles are likely to be the Roman (or their counterparts in national laws, they are really the same, there hasn't been much to invent in law after Paulus and Ulpianus) maxims like "no one can transfer more rights than he has himself" or "no one can capitalize on his own dishonesty", "not to disturb quiet/settled/longlasting things" etc.
3) Now let me briefly introduce you to the Roman theory of obligations. It's quite simple and like those maxims it's something that virtually all states adopted and I personally think/hope that this theory would serve as a basis for most judicial agencies in an AnCap society. Here it is: you can be obliged tfrom a contract (ex contractu) - relly simple, you agree to do/give/omit/suffer something - or you can be obliged from a delict (ex delicto) , from unlawful behaviour. Now you will probably raise your voice "who will decide what is lawful?" That's the beauty of it: a civil delict doesn't really require a legislator, who would describe and regulate various kinds of behaviour (like in the criminal law), a civil delict can be defined ex aequo et bono as a behaviour that A) causes damages or loss of profits and at the same time B) is based on fault, the fault can be either intent or negligence. Pretty agreeable, don't you think?
There are two other kinds - quasi ex contractu and quasi ex delicto, but those are not that much important and are controversial a little, so let's skip them for now.
4) Now straight to the copyright thing. We both agree that is possible to enter a contract that forbids the owner of the papers to make copies etc. of the book. Such a contract is obviously not binding for people whom you lend the book, or who will occupy a thrown away book. Therefore the author comes with the "by reading this book you agree to not to copy it etc." Now what if you tore out that "by reading this book blablabla" and gave/sold the book to your friend and he made copies which he sold?
There are two variants: A) It was only one sentence on the first page. Then your friend would be free to do so, but you would be liable to compensate damages and loss of profits. This part gets really ugly. Damages are zero, but what about the loss profits? How do you calculate it? Can the court/agency really assume that every copy your friend sold would be sold as well by the author? What if your friend was selling it cheaper? What then? Reduce it completely? Reduce it proportionately? As I said, ugly part and you don't wanna get there in real life, but the fact that there is liability for the loss of profits is not diminshed by difficulties of calculating it.
B) The offer of contract ("by reading this blablabla") was on every page and it has become widespread custom to write it on every page. It doesn't have to be this particluar case, it can be anything else that it is widespread and its absence is obvious. Then your friend would be liable himself, not from a contract, but from a delict. (See, that was the point of the trip to the Roman legal thought) In this particular case it was negligence, or more specifically unwillful negligence. Your friend didn't know that that the fact that all pages were cut in lower corner (for exapmle, I'm making this up) meant something, but because it was a widespread custom to print it there, he could have and should have known. (It is important to stress the "could have", the level is different for say a retard or a child than for an adult let alone an adult who works in a library or in a bookshop, that partially answers your "foreigner question") Of course, your friend would have recourse against you, because you willfuly directed him to do something you knew was illegal and you knew he didn't know, so in the end you would end up paying it all.
Once again, you can dismiss it all by saying you don't agree with this concept and you would hire an agency with different opinion, but that is not really the point of this dicsussion, is it? I am saying what I consider aequum et bonum, what seems to me to be fair and universal. Nothing more, nothing less.
Cortex:2) Sure you can say: "who is going to enforce the custom/whatever?", but you can dismiss anything by this. In an Ancap society I can set up an agency that will not consider you capable of owning things and try to seize them. But let's stay in the optimist framework that the agencies or at least majority of them will share some principles.
The non-aggression principle (which implies there are no positive rights) is the common principle. Under NAP you could not setup an agency to judge some arbitrary individuals incompetent to own property and then seize it.
Cortex:3) Now let me briefly introduce you to the Roman theory of obligations. It's quite simple and like those maxims it's something that virtually all states adopted and I personally think/hope that this theory would serve as a basis for most judicial agencies in an AnCap society. Here it is: you can be obliged tfrom a contract (ex contractu) - relly simple, you agree to do/give/omit/suffer something - or you can be obliged from a delict (ex delicto) , from unlawful behaviour. Now you will probably raise your voice "who will decide what is lawful?" That's the beauty of it: a civil delict doesn't really require a legislator, who would describe and regulate various kinds of behaviour (like in the criminal law), a civil delict can be defined ex aequo et bono as a behaviour that A) causes damages or loss of profits and at the same time B) is based on fault, the fault can be either intent or negligence. Pretty agreeable, don't you think?
The source of the law doesn't matter. The issue is the existence of a law. If you need to have a law then you do not have an IP regime based only on contracts.
Cortex:I am saying what I consider aequum et bonum, what seems to me to be fair and universal. Nothing more, nothing less.
Fair enough. But the real question is will your system work? If there is any path for third parties to make copies without consequence then can the regime you propose be practicably viable?
DBratton: The non-aggression principle (which implies there are no positive rights) is the common principle. Under NAP you could not setup an agency to judge some arbitrary individuals incompetent to own property and then seize it.
Well yeah, but who's gonna prevent me? And who said that I have to obey the NAP? Who said that it is common? I might not agree with it, am I bound by it?
DBratton: The source of the law doesn't matter. The issue is the existence of a law. If you need to have a law then you do not have an IP regime based only on contracts.
DBratton: Fair enough. But the real question is will your system work? If there is any path for third parties to make copies without consequence then can the regime you propose be practicably viable?
Well, the author will be compensated (as long as you have money to keep paying) so....and if there was the widespread custom and all that jazz than there wouldn't be a way to make copies without consequences, so it would be up to the authors to estabilish the custom. As another Roman maxim says: vigilantibus iura - to the vigiliant belong the rights.
Cortex:Well yeah, but who's gonna prevent me? And who said that I have to obey the NAP? Who said that it is common? I might not agree with it, am I bound by it?
I will prevent you from taking my property. It doesn't matter if you agree. I'm acting defensively so I am complying with the NAP.
Cortex:You do need law. If you want to stick to contracts and nothing else then you have to make contracts with every person around to respect your corporeal property.
The question still remains can you have an IP regime based only on contracts. Of course an IP regime can be established by statute. We have this now. To insist on the ability to create or assume statutes is to assume away the problem.
Cortex:Well, the author will be compensated (as long as you have money to keep paying) so....and if there was the widespread custom and all that jazz than there wouldn't be a way to make copies without consequences, so it would be up to the authors to establish the custom. As another Roman maxim says: vigilantibus iura - to the vigiliant belong the rights.
We've already established that there may be no way to collect from the first copier, and there is no recourse against the second and third copiers without resorting to statute. So we're back to square one. There is no way to establish an IP regime based solely on contracts because you can't bind third parties.
Ludwig von Mises Institute | 518 West Magnolia Avenue | Auburn, Alabama 36832-4528
Phone: 334.321.2100 · Fax: 334.321.2119
contact@Mises.org | webmaster | AOL-IM MainMises
Mises.org sitemap